N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ NATHAN C. BROWN,

Claimant

- Appellant,

v.

ROBERT A. MCDONALD, Secretary of Veterans Affairs, Respondent

- Appellee.

______________________

2014

- 7016

______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 12

- 3535, Judge Alan G. Lance, Sr.

______________________

Decided: November 18, 2014

______________________

J OHN F. C AMERON , of Montgomery, Alabama, argued for claimant

- appellant.

Z ACHARY J. S ULLIVAN , Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent

appellee. With him on the brief were S TUART F. D ELERY , Assistant Attorney General, R OBERT E. K IRSCHMAN , J R ., Director, and S COTT D. A USTIN , Assistant Director. Of counsel on the brief were Y. K EN L EE , Deputy AssistantBROWN v. MCDONALD 2

General Counsel, and B RIAN D. G RIFFIN , Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel was M ICHAEL J. T IMINSKI , Deputy Assi stant General Counsel.

______________________

Before W ALLACH , C HEN , and H U GHES , Circuit Judges.
Opinion for the court filed by Circuit Judge H UGHES

. Concurring Opinion filed by Circuit Judge W ALLACH

. H UGHES , Circuit Judge.

Nathan Brown petitioned the Court of Appeals for Veterans Claims to order the Department of Veterans Affairs to issue a rating decision on his claims for veteran benefits. During the proceedings, the Veterans Court ordered the agency to provide a status update on Mr. Brown’s case. The agency then mailed Mr. Brown notice of its prior rating decision granting him benefits and notified the court that Mr. Brown’s claim had been gran ted . Mr. Brown argues that this makes him a prevailing party under the Equal Access to Justice Act, 28 U.S.C. § 2412. But the Supreme Court has held that the go vernment’s voluntary change in conduct

, even if it acco mplish es the object of a lawsuit, does not confer prevailing

party status on the plaintiff. Accordingly

, we affirm the Veterans Court’s holding that Mr. Brown is not a prevai ling party under § 2412

. I

Mr. Brown served in t he Navy between September 1972 and December 1973. In 2001, Mr. Brown filed a claim to establish service connection for schizoaffective disorder. F ollowing two appeals to the Veterans C ourt and two joint motions for remand, the Board of Veterans ’ Appeals ordered that a new c ompensation and p ension examination be performed. A March 2012 report from the ordered examination states that Mr. Brown’s schizoaffe c-BROWN v. MCDONALD 3

tive disorder was as likely as not a result of his military service

, and that it caused him total occupational and social impairment.
Between March and October 2012, Mr. Brown r equested seven times that a regional office issue a rating decision on his claim. On October 9, 2012, the regional office sent a letter to Mr. Brown with a copy of the March 2012 examination report. The letter, however, did not include a rating decision.
On December 5, 2012, Mr. Brown filed a petition for writ of mandamus in the Veterans Court to compel the regional office to issue a rating decision and to provide him with any new evidence obtained by the regional office. On December 7, 2012, the Veterans Court ordered the Secretary of Veterans Affairs to “respond with info rmation about the status of the petitioner’s claim.” J. A. 264. Four days later, the regional offi ce mailed Mr. Brown notice of its earlier October 1 7 , 2012 rating decision granting service connection and disability ratings for his schizoaffective disorder. Then, i n response to the Veterans Court’s order, the Secretary informed the court that the rating decision had issued and that no new evidence had been obtained

. On January 17, 2013, the Veterans Court dismissed Mr. Brown’s petition as moot because he had obtained the r equested relief.
In May 2013, Mr. Brown filed a fee application under the Equal Acc e ss to Justice Act, 2 8 U.S.C. § 241 2 , for the recovery of fees and expenses incurred in filing his D ecember 5, 2012 petition. Concluding that Mr. Brown was not a “prevailing party” for the purposes of an EAJA claim

, the Veterans Court denied the applicati on. Mr. Brown appeals. We have jurisdiction under 38 U.S.C. § 7292.BROWN v. MCDONALD 4

II
Our jurisdiction over appeals from the Veterans Court is limited by statute. Although we may not review “a challenge to a law or regulation as applied to the facts of a particular case” in the Veterans Court, 38 U.S.C. § 7292(d)(2)(B), we review the Veterans Court’s interpr etation of EAJA de novo. Vaughn v. Principi , 336 F.3d 1351, 1354 (Fed. Cir. 2003).

Under EAJA

, a court award s a “ prevailing party ” fees and expenses incurred in any civil action or judicial

r eview of agency action brought against the United States, unless the position of the United State s was substantially justified or special circumstances make an award unjust

. 2 8 U.S.C. § 2412(d)(1)(A)

. To establish that it is a “prevailing party,” an EAJA applicant “ must show that it obtained an enforceable judgment on the merits or a court

- ordered consent decree that materially altered the legal relationship between the parties, or the equivalent of either of those .” Rice Servs., Ltd. v. United States , 405 F.3d 1017, 1025 (Fed. Cir. 2005).
But the Supreme Court has held that “[a] defendant’s volun tary change in conduct, although perhaps acco mplishing what the plaintiff sought to achieve by the la wsuit,” can not confer prevailing party status on a plaintiff

. Buckhannon Bd. & Care Hom e, Inc. v. W. V a. Dep’t of Health & Human Res.

, 532 U.S. 598, 605 ( 2001). Analy zing fee shifting statutes similar to EAJA, t he Court e xplained that a voluntary change “ lacks the necessary judicial imprimatur on the change.” Id. We have since applied Buckhannon and interpreted EAJA as excluding applications for fees and expenses based on th is “ catalyst ” theory

. See Vaughn , 336 F.3d at 135 5– 56 ; Brickwood Contractors, Inc. v. United States , 288 F.3d 1371, 1376 (Fed. Cir. 2002)

. Mr. Brown argues that he i s a prevailing party by vi rtue of the Veterans Court’s December 7, 2012 order be-BROWN v. MCDONALD 5

cause he received some relief as a result of the order

. Appellant’s Br. 25. The Veterans Court disagreed, hol ding that Mr. Brown’s prevailing party argument relies on the catalyst theor y . We agree with the Veterans Court.

Mr. Brown’s petition for a writ of mandamus reques ted the issuance of a rating decision and copies of any new evidence obtained by the regional office. The Veterans Court’s December 7, 2012 order was not on the merits and did not compel the agency to issue a decision. Instead, it required the Secretary to “respond with information about the status of the petitioner’s claim.” J. A. 264. Following the order, the regional office voluntarily mailed its rating decision to Mr. Brown. The Secretary then notified the Veterans Court that it had made a rating decision and that no new evi dence had been obtained.
Although Mr. Brown achieved his desired results

, those result s occurred through the voluntary conduct of the regional office and the Secretary. They did not occur because of an enforceable judgment on the merits or a
court

- ordered consent decree. Such circumstances do not fall within the meaning of “ prevailing party ” in 2 8 U.S.C. § 2412(d)(1)(A)

. Vaughn , 336 F.3d at 1355

– 56.

More o ver, even if we assume that the issuance of the rating decision was a direct result of the Veterans Court’ s order requiring a status report, that is simply a restat ement of the catalyst theory and insufficient to confer prevailing party status. We rejected a similar theory in Brickwood

, 288 F.3d 1371, where the government allege dly changed its position as a result of preliminary oral comments from the court that were not embodied in a court order. There, we held that the lack of an enforce able judgment on the merits or a conse nt decree precluded prevailing party status. Id. at 1379

– 80. Similarly, here, a preliminary order requiring a status report fails to establish that Mr. Brown was a prevailing party.BROWN v. MCDONALD 6

We have considered Mr. Brown’s other arguments and find them without m erit. To the extent that Mr. Brown asks us to review the application of EAJA to the partic ular facts of his case , we lack jurisdiction to do so

. See id. at 1354.

III
Because the Veterans Court correctly construe d 28 U.S.C. § 2412(d)(1)(A) , we affirm.

A FFIRMED

No c osts.N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ NATHAN C. BROWN,

Claimant

- Appellant,

v.

ROBERT A. MCDONALD, Secretary of Veterans Affairs, Respondent

- Appellee.

______________________

2014

- 7016

______________________

W ALLACH , Circuit Judge

, concurring.
I concur although when the Department of Veteran s Affair s’ level of incompetency rises to a level approaching actual malevolence, at some point legal action to obta in redress should require EAJA compensation

.